Where, however, in a joint action against two, it appeared that one had in writing promised to pay "his proportion of the debt when applied to," the court held that in such joint action on the original debt, and joint cause of action, the plaintiff could not, in reference to the terms of the promise, recover even against the party who made it (d). An action was subsequently brought against that party, and he was declared against specially on his conditional promise to pay his share of the debt when applied to; and it was decided that such written promise was binding, and that the action was well brought, although the written memorandum did not mention the defendant's proportion of the debt; and although in the former action he recovered a verdict and judgment on the pleas of the general issue and Statute of Limitations, and the plaintiff had a verdict and judgment against the other defendant upon the general issue (e). But a part payment by one of several original joint debtors or contractors, either of principal or interest comprising the original debt, revives the remedy against the other parties, although they were sureties only (ƒ). And this rule applies, although the parties were bound severally, as well as jointly, to pay the debt, and the action is brought separately against one of them who did not make the part payment (g). A payment by one of several joint debtors must have clear reference to their debt, or it will not bind, or affect, the other party and it has therefore been considered, that in order to take a case out of the statute in an action on a promissory note, it is not sufficient to show a general payment by a joint maker of the note to the payee within six years, so as to throw it upon the defendant to show that the payment was not made on account of the note (h). The principle upon which part payment (which is the most powerful admission of a debt and a strong evidence of a promise to pay the remainder), is allowed to affect other parties, jointly indebted with the payer, is the community of interest between them, and the presumption that the party paying would not thus acknow (d) Lechmere v. Fletcher and another, in King's Bench, 1 C. & M. 626, note (a); Platt and Hall, Boswell Court, attorneys for the plaintiff. (e) Lechmere v. Fletcher, in the Exchequer, 1 C. & M. 623. (f) Ante, 648. (g) Id. Whitcomb v. Whiting, Doug. 652; Burleigh v. Stott, 8 B. & C 36; V. (h) Holme v. Green, 1 Stark. R. 488, per Lord Ellenborough; Brandram v. Wharton, 1 B. & Al. 468. ledge that which was adverse to his own interest (i) or be collusively induced to make the sacrifice of a part payment, for the purpose of fixing his co-contractor. Where the original community of interest and liability ceases, the part payment by one affects himself only. Therefore after the death of one or two joint, or joint and several, contractors, his executors cannot be prejudiced or made liable by a part payment, after the lapse of six years, by the surviving debtor (k). Nor in such case will the latter be affected by a payment on account by the executors (l). It was determined in Jackson v. Fairbank (m), that a payment within six years, of a dividend on a joint and several note, under a commission of bankrupt against one of the makers, precludes the other from availing himself of the Statute of Limitations. But this decision appears to have been doubted in Brandram v. Wharton (n), on the ground that the acknowledgment, besides being a constructive one, was made by parties (the assignees), who never could be called upon for contribution. In that case, one of two joint drawers of a bill of exchange became a bankrupt, and under his commission the indorsee proved a debt (beyond the amount of the bill) for goods sold, &c., and exhibited the bill incidentally (that is, as a security he then held for his debt), and afterwards received a dividend; it was held, in an action by the indorsee against the solvent drawer, that the payment of the dividend within six years did not revive the demand against him. The court, however, distinguished the case from Jackson v. Fairbank, for there the claim was made and the dividend received upon the instrument itself; whereas in Brandram v. Wharton, the dividend was on a distinct debt, and the instrument was introduced but incidentally, and the introduction or omission of it neither increased or diminished the claim upon the dividends: and Bayley, J., observed that there was, in fact, no acknowledgment by any one. 4. To whom the Acknowledgment may be made. The acknowledgment need not be made to the creditor himself, or even to his agent or servant. (i) See 2 Stark. Ev. 44, 483, 2nd ed. (k) Atkins v. Tredgold, 2 B. & C. 23; 3 D. & R. 200, S. C. (1) Slater v. Lawson, 1 Barn. & Adol. 396. (m) 2 H. & Bla. 340. In a case before Lord Kenyon at Nisi Prius (p), to prove an acknowledgment by the defendant of the debt within six years, in answer to a plea of the Statute of Limitations, the plaintiff called a witness to whom the defendant was also indebted, and who having called on him for money, the defendant stated, “I suppose you want money, but I cannot pay you: I must pay Mr. Peters (the plaintiff) first, and then I'll pay you:" and his Lordship held that this acknowledgment took the case out of the statute. So, where A., by means of misrepresentation, received of B., and several other persons, his, A.'s, tenants, various sums of money to which he was not entitled; and on B. remonstrating that he and the other tenants had paid more than was due, A. stated to B., that if there was any mistake it should be rectified; it was held that this obviated the statute as to the payments made by the other tenants, as well as by B. (q.) And an acknowledgment of a debt (due to the plaintiff,) in a deed to third persons, and to which the plaintiff was a stranger, is sufficient to defeat the operation of the act (r). In an action against A., on the joint and several promissory note of himself and B., to take the case out of the statute, it is enough to give in evidence a letter, written by A. to B., within six years, desiring him to settle the demand (8). An acknowledgment by the acceptor of a bill of exchange, within six years, of his liability on the bill to the payee thereof, but accompanied with a declaration that he was not liable to the drawer, there being no consideration for the acceptance, is not sufficient, in an action by the latter against the acceptor, to take the case out of the statute; for the admission could not enure to the benefit of a party whose claim the defendant denied (t). 4thly. Of issuing and continuing a Writ to save the Statute. By the Uniformity of Process Act, 2 W. 4, c. 39, s. 10, it is provided, "That no writ issued by authority of this act, shall be in force for more than four calendar months from the day of the date thereof, including the day of such date; but every writ of summons and capias may be continued by alias and pluries, as the case may require, if any defendant therein named may not have been arrested thereon, or served therewith: Provided always, (p) Peters v. Brown, 4 Esp. R. 46. (q) Clarke v. Hougham, 2 B. & C. 149; 3 D. & R. 322, S. C. (r) Mountstephen v. Brooke, 3 B. & Al. 141. (s) Halliday v. Ward, 3 Camp. 32. (1) Easterly v. Pullen, 3 Stark. R. 186. that no first writ shall be available to prevent the operation of any statute, whereby the time for the commencement of the action may be limited, unless the defendant should be arrested thereon or served therewith, or proceedings to or toward outlawry should be had thereupon; or unless such writ, and every writ (if any), issued in continuation of a preceding writ, shall be returned non est inventus, and entered of record, within one calendar month next after the expiration thereof, including the day of such expiration; and unless every writ issued in continuation of a preceding writ shall be issued within one such calendar month after the expiration of the preceding writ, and shall contain a memorandum indorsed thereon or subscribed thereto, specifying the day of the date of the first writ, and return to be made in bailable process by the sheriff or other officer to whom the writ shall be directed, or his successor in office; and in process not bailable, by the plaintiff or his attorney suing out the same, as the case may be" (u). The Rules on Pleading of Hilary Term, 1834, give the forms of the Issue and Record to be adopted in actions in the different courts; and it will be observed that such forms refer shortly to the summons or capias issued against the defendant in the cause, and state the time when the writ (x) was issued. This dispenses with the necessity of producing the process at the trial, to show when the action was commenced: the fact will appear on the face of the record. If a plaint be levied in an inferior court in due time, and then it be removed into the King's Bench by Habeas Corpus, and the plaintiff declare there de novo, and the defendant plead the statute, the plaintiff may reply and show the plaint in the inferior court, and that will be sufficient to avoid the statute (y). 5thly. Of the Pleadings in these Cases. In general where the debt is revived by an absolute acknowledg ment within six years, it is sufficient to declare upon the original promise (~); for in such case the subsequent promise and original (u) See the form of the entry on the Roll, Tidd's 2nd App 59; T. Chitty's Pr. Forms, 636, 637, 638. (x) The form requires that the date of the first writ be mentioned. (y) Bevin v. Chapman, 1 Sid. 228; 1 Lev. 143, S. C.; Matthews v Phillips, Ld. Raym. 553; 2 Salk. 424; Brown v. Babbington, 2 Ld. Raym. 881; Storey v. Atkins, Stra. 719; 2 Ld. Raym. 1427, S. C.; Tidd 9th ed 27,8. (z) Leaper v. Tatton, 16 East, 420; Upton v. Else, 12 Moore, 303; and see 9 G. 4, and3 & 4 W. 4, ante, 633, 640, 641. pro promise agree together. There are, however, some instances in which the declaration should be specially framed upon the defendant's subsequent promise or acknowledgment, as where the defendant mises conditionally to pay the money, as "when he shall be able,” or "when applied to," &c. (a). So, if an attorney promise within six years to pay the plaintiff, money he had expended, or lost, in consequence of the defendant's negligence more than six years before the commencement of the suit, the declaration should be drawn upon the defendant's subsequent promise to make satisfaction to the plaintiff, and not for the original neglect, otherwise the statute will be a bar (b). And where the plaintiff employed the defendant in 1808 to lay out money for him in the purchase of an annuity, and discovered in February, 1814, that the security provided by the defendant was void, within the defendant's own knowledge, at the time of the purchase; and in Janury, 1820, the plaintiff sued the defendant in assumpsit, for the breach of the implied promise to provide good security; it was held that as the action proceeded upon the contract, and not upon the fraud, the statute was a good bar (c). If it be anticipated that the statute will be pleaded to an action at the suit of an executor, or the assignee of a bankrupt, &c., for a debt due to the testator or bankrupt, and there be a probability of defeating the plea by proving a sufficient subsequent promise or acknowledgment to the plaintiff in his representative character, the declaration should contain a count laying a promise to the plaintiff in such capacity (d). Upon a count on a promise to the testator, or bankrupt, a promise or acknowledgment to the executor, or assignee, could not be given in evidence (d). And in an action of assumpsit against a husband and wife and A., laying only a promise" by her and A. before marriage," no acknowledgment by A. after the marriage, can be given in evidence (e). The statute must be specially pleaded. It forms no defence under the general issue (f). It has, however, been laid down (a) See ante, 642, 643, 651. (b) Short v. M'Carthy, 3 B. & Al. 626; Whitehead v. Howard. 5 Moore, 105; 2 Brod. & B. 372, S. C. (c) Brown v. Howard, 2 Brod. & B. 73; 4 Moore, 508, S. C, ante 638, 639. (d) Sarell v. Wine, 3 East, 409; Ward v. Hunter, 6 Taunt. 210; 1 B. & C. 249, 251; 2 D. & R. 368, 370, S. C.; Upton v. Else, 12 Moore, 304, |